The Oath

Wow, what happened? There is some good discussion at Volokh about it, and Randy Barnett has posted a transcript and YouTube link. Meanwhile, here is a nicely detailed play-by-play analysis from my colleague Bryan Wildenthal:

Article II, Section 1, Clause 8 of the Constitution states that “Before [the President] enter on the Execution of his Office, he shall take the following Oath or Affirmation: ‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'”

Instead of pausing after reciting “I, Barack Hussein Obama” (I think it is customary to pause then to allow the oath-taker to repeat those words), Chief Justice Roberts forged ahead and added, “do solemnly swear,” resulting in them talking over each other for a second. I suppose he might blame President Obama for jumping in too quickly and not waiting for his cue.

That seemed to throw both of them off. But Obama recovered and repeated, “I, Barack Hussein Obama, do solemnly swear.”

Roberts, then speaking slowly and sounding quite rattled, then said, “that I will execute the Office of President to [not of] the United States [pause] faithfully…..”

Obama clearly (it seemed to me) recognized that Roberts had misstated this section of the oath, omitting “faithfully” from before “execute,”

instead tacking on “faithfully” clumsily at the end of the phrase, and saying “President TO” instead of “OF” the United States.

Obama then slowly said: “that I will execute…” and then paused, seeming to recognize that the words he had just repeated sounded wrong. Instead of recovering to just repeat (accurately) the entire phrase, Roberts just prompted Obama by saying “the office,” then immediately corrected himself by saying “faithfully,” then again “the office,” even as Obama, thoroughly thrown off, started trying to repeat what he was saying.

It’s hard to make out on the videotape exactly what they both said, as this presidential oath-taking mash-up spiralled out of control.

I think Roberts managed to blurt out: “the Office–faithfully–the Office–the Office of President of the United States…”

When the audio clears, Obama can be heard hastily repeating the entire phrase almost exactly as Roberts (wrongly) first read it to him, “the Office of President of the United States faithfully….” (except Obama did correctly use “of the United States” instead of “to the United States”).

And from that point, a shaken Roberts managed to recite the rest of the oath accurately, and Obama repeated it flawlessly.

So, in the end, Obama did utter every word required in the oath correctly, except that he said “faithfully” out of order. Instead of saying, “… that I will faithfully execute the Office of President of the United States,” he said, “…that I will execute [ellipsis here where the mash-up occurred] the Office of President of the United States faithfully…..”

Good enough for government work, as they say.

Sounds right to me!

Bryan also notes:

Too bad Chief Justice Roberts could not faithfully recite the oath. He had a few short lines to give and he screwed up! I think Obama is now vindicated in voting against confirmation. Or maybe this was “Roberts’s revenge”….?

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I know there are some right-wing wing-nuts who are already pointing at the oath kerfuffle to argue that Obama’s presidency isn’t really legitimate. I’m also certain that, if the Oath kerfuffle was important enough of a matter to illegitimize Obama’s presidency, Roberts and Obama would have redone the Oath backstage afterwards to get it right.

But my real question is…. how much of the oathtaking that we see just so much ceremony? To draw an analogy, in many jurisdictions a couple don’t become married when the officiant says “I now pronounce you husband and wife”, but rather when the marriage license is signed and countersigned by all involved. Similarly, is the Oath before the inaugural speech not the legally important bit, but rather a written version signed separately?

Does the National Archivist possess a document containing the Presidential Oath signed by Obama? Or is it too much to ask that Government be ruled by paperwork?